There’s been a national debate about religious beliefs and work responsibilities lately, revolving around the case of Kentucky County Clerk Kim Davis, who was jailed for refusing to issue marriage licenses to same sex couples. It raises the thorny issue of when worlds collide: job responsibilities in conflict with a person’s religious convictions.
Making fewer headlines but watched with interest by employers is the case of the Muslim flight attendant who filed with the EEOC for religious discrimination when her employer denied accommodation in the serving of alcohol on flights, which she saw as a violation of her faith. Her complaint follows her suspension by ExpressJet.
In an article in the Washington Post, law professor Eugene Volokh talks about these cases and cites a variety of other cases when work duties came in conflict with an employee’s religious beliefs. When does your religion legally excuse you from doing part of your job? It’s a good article from an informed source: Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law.
“Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them. (The Muslim flight attendant I mentioned above, for instance, claims that she has always been able to work out arrangements under which the other flight attendant serves the alcohol instead of her.)”
Volkoh makes observations about accommodations and then discusses them in the light of the Kim Davis’ case. His observations are interesting; Jon Hyman of Ohio Employer’s Law Blog offers a summary of Volkoh’s analysis and adds his own comments in his post, When religious liberty clashes with job requirements
Hyman also has several posts analyzing another huge EEOC religious discrimination case decided earlier this year, a case that he calls a game changer. See his post SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case In that post, he offers a discussion of the Supreme Court decision involving a hijab-wearing applicant, who was denied a religious accommodation based on the company’s “look policy.”
Hyman suggests that employers use a three-pronged approach to religious accommodations in the workplace – ACE: ask, communicate, educate – and he outlines each of those steps:
Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation.
Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.
EEducate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.
Employment Law attorney Robin Shea discusses another recent religious discrimination case with a half million dollar judgement in the employee’s favor. The case involves a fairly esoteric religious belief – read the post at Employment & Labor Insider to get a full description: Yes, employers may have to accommodate even “crazy” religious beliefs.
Shea says the lesson in this and other religious cases is that “it doesn’t matter what you think” about the validity of the belief. Shea says:
“In our pluralistic society, it makes sense not to base religious accommodation decisions on whether the employer agrees with the employee, or considers the belief to be “correct.” Should a Jewish employer be able to refuse to accommodate her Seventh Day Adventist employees because she doesn’t share their beliefs? Should a lackadaisical Baptist employer be able to refuse to accommodate more-devout Baptist employees because they’re taking this stuff way too seriously? Should a Catholic supervisor be entitled to demand an “authoritative” letter from the “bishop” of an evangelical Christian employee, who has no bishop? Should an atheist employer be able to refuse to accommodate any religious need because, in the atheist’s opinion, all of that “religious” stuff is a bunch of baloney?
Of course, this would never work. So the law errs on the side of accommodation if (1) the religious belief is sincerely held (no matter how outlandish it may sound to an outsider), and (2) accommodation is not an undue hardship for the employer.”
Related news and resources
EEOC Sues UPS for Religious Discrimination – Package Delivery Giant Discriminated Against Class of Applicants and Employees Whose Religion Conflicted With the Company’s Uniform and Appearance Policy, Agency Charged
EEOC: Religious Discrimination